Professional Documents
Culture Documents
MAY 13 1997
PUBLISH
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
MELZENIA HAWKINS,
Plaintiff-Appellant,
No. 96-5110
v.
SHIRLEY S. CHATER,
Commissioner, Social Security
Administration, *
Defendant-Appellee.
-2-
Williams v. Bowen, 844 F.2d 748, 750-72 (10th Cir. 1988), the administrative law
judge (ALJ) found claimants impairments nonsevere, see 20 C.F.R. 404.1521,
and concluded at step two that claimant was not disabled, see 20 C.F.R.
404.1520(c). Claimant challenges that determination as unsupported by
substantial evidence in the record as a whole, arguing in particular that the ALJ
failed in his duty to develop the record when he refused to order consultative
physical and mental examinations of claimant.
It is beyond dispute that the burden to prove disability in a social security
case is on the claimant. See Hill v. Sullivan, 924 F.2d 972, 974 (10th Cir. 1991).
However, unlike the typical judicial proceeding, a social security disability
hearing is nonadversarial, see Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir.
1987), with the ALJ responsible in every case to ensure that an adequate record
is developed during the disability hearing consistent with the issues raised,
Henrie v. United States Dept of Health & Human Servs., 13 F.3d 359, 360-61
(10th Cir. 1993); 20 C.F.R. 404.944 (requiring the ALJ to look[] fully into the
issues); see also Heckler v. Campbell, 461 U.S. 458, 471 n.1 (1983) (Brennan, J.
concurring) (describing duty as one of inquiry, requiring the decision maker to
(...continued)
prescriptions for anti-depressant medication, and because claimant testified that
she was depressed, we consider the issue of depression to have been properly
before the ALJ. See Carter v. Chater, 73 F.3d 1019, 1021-22 (10th Cir. 1996).
2
-3-
inform himself about facts relevant to his decision and to learn the claimants own
version of those facts); cf. Social Security Ruling 96-7p at n.3 (assigning to the
adjudicator the task of developing evidence regarding the possibility of a
medically determinable mental impairment when the record contains information
to suggest that such an impairment exists); Social Security Ruling 82-62
(requiring the ALJ to develop and fully explain issue of whether a claimant
retains the functional capacity to perform past work).
Against this background, claimant first argues that the ALJ should have
ordered a consultative mental examination based on the evidence in the record of
her depression. The record reveals the following evidence regarding claimants
depression: In April 1990, Dr. Alexander, claimants treating physician in
California, noted in a treatment log that claimant had been depressed and that
he had prescribed Pamelor for nerves and depression. See R. Vol. II at 27.
Subsequent notes from Dr. Alexander indicate that claimant continued to take
Pamelor at least through May 1991, see id. at 27-28. The record contains no
objective medical test results to verify claimants depression.
The next mention of anything related to depression is a letter from Dr.
Reed, a physician who treated claimant after she moved to Oklahoma from
California, and who stated that She was given Prosac [sic]. Id. at 34. Again,
no test results appear in the record to confirm depression. Claimant and her sister
-4-
both testified at the hearing the claimant was depressed, see id. at 90, 98, and an
agency interviewer noted that claimant looked depressed. There is no evidence
that the agency interviewer was qualified to diagnose depression.
In rejecting claimants allegation of disabling depression, the ALJ
discounted her use of anti-depressant medication. He noted that one of the
treating physicians who had given her anti-depressants was a family
practitioner/OB-GYN and that the other physician, Dr. Reed, was an internist who
obligingly gave her medication. See R. Vol. II at 51. He noted that neither
physician reported objective findings or referred claimant to a mental health
specialist. See id. He refused to credit claimants subjective complaints of
depression.
We need not decide whether the evidence outlined above relating to
claimants mental state would be sufficient to justify a remand for further
development of the record because here there is a further opinion from Dr. Toner,
a psychiatrist, dated January 10, 1991, who completed a psychiatric review
technique form and was of the opinion that claimant had no medically
determinable impairment. See id. at 169. Dr. Toner specifically stated that
claimant suffers from no medically determinable MI [mental impairment], id. at
170, and that there was no indication of significant functional limitations on the
basis of psychological problems, see id.
-5-
Although the ALJ inexplicably did not mention this report in his decision,
the report is substantial evidence supporting the conclusion that claimant does not
suffer from a severe mental impairment. Its presence in the record, coupled with
the absence of any objective medical findings regarding claimants alleged
depression, justifies the ALJs decision to discredit claimants testimony and the
fact of her use of prescribed anti-depressants. Given this state of the record, the
ALJ was not required to order further psychological examination.
We turn now to claimants medical history regarding her hypertension and
chest pain. Claimant apparently began the social security disability application
process in California, but her file was lost by the agency. See R. Vol. II at 109.
What evidence does remain of claimants medical history in California reveals
that, in October 1990, under the treatment of Dr. Ridgill, claimant underwent an
EKG which was reported as abnormal, see id. at 185, presumably because of
nonspecific ST-T wave changes. 3 Dr. Ridgills assessment at that time was
hypertension with possible coronary artery disease. See id. The record of Dr.
Ridgills examination states the following:
ELECTROCARDIOGRAM READING:
Normal sinus rhythm. Nonspecific STT changes. Mostly in the inferior
leads and anterior leads changes are noted.
There is no evidence in the record regarding what nonspecific STT
changes mean or what they indicate in terms of heart function.
-6-
-7-
(...continued)
assessment, that claimants EKG revealed something reacting in the poor
category. R. Vol. II at 161. The writing is illegible, and so it is impossible to
determine what part of claimants EKG was poor. A later illegible notation by
a different physician also notes something very poor with regard to claimants
EKG. See id. at 178.
4
-8-
look further. We begin by acknowledging that the Secretary has broad latitude in
ordering consultative examinations. See Diaz v. Secretary of Health & Human
Servs., 898 F.2d 774, 778 (10th Cir. 1990). Nevertheless, it is clear that, where
there is a direct conflict in the medical evidence requiring resolution, see 20
C.F.R. 404.1519a(b)(4), or where the medical evidence in the record is
inconclusive, see Thompson v. Sullivan, 987 F.2d 1482, 1491 (10th Cir. 1993), a
consultative examination is often required for proper resolution of a disability
claim. Similarly, where additional tests are required to explain a diagnosis
already contained in the record, resort to a consultative examination may be
necessary. 5
That these specific instances may require the use of consultative
examinations is supported by agency regulations. Subsection (f) of 404.1512
provides:
(f) Need for consultative examination. If the information we
need is not readily available from the records of your medical
treatment source, or we are unable to seek clarification from your
medical source, we will ask you to attend one or more consultative
examinations at our expense.
20 C.F.R. 404.1512(f). 20 C.F.R. 404.1519a further provides:
We are not confronted here with a situation where evidence already exists,
and the ALJ must simply take the appropriate steps to acquire it. See, e.g., Carter
v. Chater, 73 F.3d 1019, 1022 (10th Cir. 1996); Baker v. Bowen, 886 F.2d 289,
292 (10th Cir. 1989).
5
-9-
-10-
-11-
Ordinarily, the claimant must in some fashion raise the issue sought to be
developed, see Henrie, 13 F.3d at 360-61, which, on its face, must be substantial,
see Heggarty v. Sullivan, 947 F.2d 990, 997 (1st Cir. 1991). Specifically, the
claimant has the burden to make sure there is, in the record, evidence sufficient to
suggest a reasonable possibility that a severe impairment exists. When the
claimant has satisfied his or her burden in that regard, it then, and only then,
becomes the responsibility of the ALJ to order a consultative examination if such
an examination is necessary or helpful to resolve the issue of impairment.
Further, when the claimant is represented by counsel at the administrative
hearing, the ALJ should ordinarily be entitled to rely on the claimants counsel to
structure and present claimants case in a way that the claimants claims are
adequately explored. Thus, in a counseled case, the ALJ may ordinarily require
counsel to identify the issue or issues requiring further development. See Glass v.
Shalala, 43 F.3d 1392, 1394-96 (10th Cir. 1994) (refusing to remand for further
development of the record where the ALJ had carefully explored the applicants
claims and where counsel representing claimant failed to specify the additional
information sought). In the absence of such a request by counsel, we will not
impose a duty on the ALJ to order a consultative examination unless the need for
one is clearly established in the record.
-12-
The ALJ does not have to exhaust every possible line of inquiry in an
attempt to pursue every potential line of questioning. See Glass, 43 F.3d at 1396.
The standard is one of reasonable good judgment. The duty to develop the record
is limited to fully and fairly develop[ing] the record as to material issues. Baca
v. Department of Health & Human Servs., 5 F.3d 476, 479-80 (10th Cir. 1993).
This standard is consistent with our holding in Henrie, 13 F.3d 359. There,
in a case decided at step four and involving the development of the record
regarding the specifics of a represented claimants past relevant work, we
remanded for additional development of facts relating to the stress level involved
in the claimants former work as a negative stripper. See id. at 360-61. We noted
that the ALJ must develop the record consistent with the issues raised, id., even
when a claimant is represented by counsel. See also Thompson, 987 F.2d at
1491-93 (ordering a consultative examination where medical record was
inconclusive); Baca, 5 F.3d at 479-80 (remanding for further development of
material issues raised by the record).
We also note that our standard is consistent with that in other circuits
which have discussed the issue of an ALJs duty to order a consultative
examination. In Brock, 84 F.3d 726, the claimant had written a post-hearing
letter to the ALJ alleging, for the first time, that he suffered from depression and
the effects of past drug abuse and arguing that he should have received a
-13-
-14-
In Currier v. Secretary of Health, Education & Welfare, 612 F.2d 594 (1st
Cir. 1980), the claimant had been discharged by the Air Force because of mental
problems and had been given a one hundred percent disability from the VA. He
had been fired by his civilian employer as nonemployable, and there was evidence
in the record that he had a non-trivial psychiatric condition. Id. at 598. The
ALJs reliance on conclusory notes from a VA doctor was found to be an
inadequate development of the record. The court stated:
In most instances, where appellant himself fails to establish a
sufficient claim of disability, the Secretary need proceed no further.
Due to the non-adversarial nature of disability determination
proceedings, however, the Secretary has recognized that she has
certain responsibilities with regard to the development of the
evidence, and we believe this responsibility increases in cases where
the appellant is unrepresented, where the claim itself seems on its
face to be substantial, where there are gaps in the evidence necessary
to a reasoned evaluation of the claim, and where it is within the
power of the administrative law judge, without undue effort, to see
that the gaps are somewhat filled as by ordering easily obtained
further or more complete reports or requesting further assistance
from a social worker or psychiatrist or key witness. We emphasize
that we do not see such responsibilities arising in run of the mill
cases, but here appellant seems obviously mentally impaired to some
degree . . . .
Id. at 598 (citations omitted). See also Morgan v. Sullivan, 945 F.2d 1079, 1082
(9th Cir. 1991) (remanding for development of evidence regarding onset date of
claimants mental problems where record was ambiguous).
While there are some cases requiring a stricter showing by a claimant
asserting a claim of failure to develop the record, we view those cases as
-15-
distinguishable because, for the most part, they involve a claim that the ALJ
failed to obtain existing medical records that the claimant later argues would have
established disability. For example, Shannon v. Chater, 54 F.3d 484, 488 (8th
Cir. 1995), involved claims that the ALJ, on his own initiative, had failed to
obtain existing evidence. The court there required the claimant to prove prejudice
by establishing that the missing evidence would have been important in resolving
the claim before finding reversible error.
However, there is a difference between a claimant who argues that he or
she should have been afforded a consultative examination, and a claimant who
argues that there was already evidence in existence that the ALJ failed to uncover
or procure. Where evidence is already in existence at the time of the
administrative hearing, it may be appropriate to require the stricter showing
exemplified in Shannon, 54 F.3d 484. It would not be reasonable, however, to
expect a claimant to demonstrate that evidence from a consultative examination,
which has yet to be administered, would necessarily be dispositive. As stated
earlier, the ALJ should order a consultative exam when evidence in the record
establishes the reasonable possibility of the existence of a disability and the result
of the consultative exam could reasonably be expected to be of material assistance
in resolving the issue of disability.
-16-
On the record before us, we hold that claimant has presented sufficient
medical evidence to warrant further investigation of her physical condition as it
relates to her claim of disabling hypertension and chest pain. Although the ALJ
stated that Dr. Reed recorded no objective evidence of any impairment . . . and
the only laboratory data he secured was an electrocardiogram which revealed
nonspecific ST-T wave changes, see R. Vol. II at 50, as we have discussed
above, Dr. Reeds EKG revealed more than that. His opinion that claimant may
suffer from possible inferior ischemia, id. at 34, and the EKG report itself which
stated that anteroseptal myocardial infarction could not be ruled out and that
abnormal ST & T waves were present, see id. at 35, should have alerted the ALJ
to the need for more testing, particularly with a claimant who had already had one
abnormal EKG and had earlier, on two separate occasions, been unable to take a
further treadmill exam because of high blood pressure. 6
In order to meet the burden of proof at step two, a claimant must
demonstrate an impairment or combination of impairments that significantly
limits the claimants ability to do basic work activity. See 20 C.F.R.
-17-
-18-